Section 12 of the Immigration Act 2004, which made it a criminal offence for a non-national to fail to produce a passport or equivalent document, was found to be unconstitutional.

Background

The applicant is believed to be a national of Liberia. She entered the State via Dublin airport in April 2008 along with her daughter and two other children who she said she was asked in Lagos airport to bring with her. She was arrested and charged with failing to produce a passport or other equivalent document, and failing to give a satisfactory explanation for the failure.

She appeared before the District Court on April 4th of that year and was remanded. On April 9th she applied for asylum. The District Court took the view the initial charge was null and void and she was released, but on May 29th she was rearrested and charged with failing to produce the necessary documents. She was granted bail and released, but did not subsequently produce any documents.

“The State simply does not know for sure who the applicant is or even what country she comes from,” Mr Justice Kearns said. “The facts of this case illustrate all too clearly the serious problems faced by immigration authorities in endeavouring to control and deal with undocumented persons entering this jurisdiction.”

She brought judicial review proceedings, and the Irish Human Rights Commission appeared as an amicus curiae in the case.

Counsel for the applicant argued that Section 12 (S 12) of the 2004 Act, which confers upon an Immigration officer or garda the power to stop any non-national and demand the production of their passport and creates a criminal offence punishable by up to one year’s imprisonment, was objectionable on various grounds.

The words purporting to create a criminal offence were too vague and imprecise, counsel said; S 12 was a disproportionate interference with the equality provisions of the Constitution; the procedure was open to an abuse of process in that it was open to the authorities to either prosecute the applicant under Section 11 (S 11), requiring her to produce a passport when entering the State, or to keep her in civil detention under Section 9 (S 9) of the Refugee Act 1996 while dealing with her asylum application.

Counsel argued that failing to provide a “satisfactory explanation” could not properly form the basis for any criminal offence, as the section contained no standard for what a “satisfactory explanation” might be. He also argued that there was a significant difference between a “reasonable” and a “satisfactory” explanation, in that “satisfactory” had to satisfy an individual member of An Garda Síochána, and might satisfy one but not another.

Pointing out that the Constitution guaranteed to treat everyone equally before the law, counsel argued that S 12 discriminated against the applicant as an undocumented non-national. Irish nationals were not required to carry identification documents.

Counsel for the prosecution argued that the section enjoyed the presumption of constitutionality; that it was the right of the State to control entry of non-nationals into the State, and its power to regulate their movements was considerably greater than in relation to citizens of the State, who enjoyed rights and protections not enjoyed by non-nationals.

S 12, in providing for a “satisfactory explanation” to be given for the non-production of documents, acted as a safeguard and was a defence to the alleged offence of not having a passport.

Article 40.1 of the Constitution states that all citizens are equal before the law. It did not apply to the applicant, who was not a citizen, and S 12, which applied only to non-nationals, could not be contrary to this Article, which applied only to citizens.

Decision

Mr Justice Kearns said he was of the view that the failure to define the term “satisfactory explanation” did give rise to vagueness and uncertainty. The section as worded had considerable potential for arbitrariness in its application by any individual member of An Garda Síochána.

He said the failure to provide a “satisfactory explanation” did appear to be part of the actus reus of the purported criminal offence. He did not follow the respondent’s argument that it was a defence. It would have been much more satisfactory if the draftsman had identified the explanation as a defence, as was done in the corresponding British legislation.

The offence purportedly created by S 12 was ambiguous and imprecise and lacked the clarity needed to create a criminal offence. S 12 also potentially breached the applicant’s constitutional right not to incriminate herself, in that remaining silent equated to failing to provide a satisfactory explanation.

He acknowledged the State had a right and a duty to control the movement of non-nationals into and out of the State, and having a criminal sanction for failing to have a passport or equivalent when entering the State was not a disproportionate response to that requirement.

However, in this instance the use of S 11 of the Act would have been a more appropriate response to the arrival of the applicant into the State.

The vagueness of S 12 of the 2004 Act was such as to fail basic requirements for the creation of a criminal offence; it gave rise to arbitrariness and legal uncertainty, and offended the principle that a person be not obliged to incriminate himself. For these reasons it was unconstitutional.

Even if it was constitutionally sound, the deployment of S 12 in respect of this applicant was an unconstitutional use of a legislative provision designed for different circumstances.

He declared it to be inconsistent with the Constitution and in particular Article 38.1 – that no person shall be tried on a criminal offence save in due course of law, and with the guarantee in Article 40.4.1 that no person be deprived of liberty save in accordance with law.

The full judgment is on www.courts.ie

Rosario Boyle SC and Anthony Lowry BL, instructed by Kelleher O’Doherty, for the plaintiff; Simon Boyle SC and Douglas Clarke BL, instructed by the Chief Prosecution Solicitor, for the DPP